Similar to the notion of a lesser-included offense, the double jeopardy clause of the Constitution does not allow the government to bring a subsequent prosecution where the government would be required to prove the same essential element as it was required to prove in a prior prosecution against the same defendant.
When, as here, conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction of the greater one. A person who has been tried and convicted for a crime which has various incidents included in it, cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offense.Harris v. Oklahoma, 433 U. S. 682 (1977) (cleaned up) (citations and footnote omitted).
When it is not contended that a defendant’s right to be free from multiple trials for the same offense has been violated, but rather where cumulative sentences are imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended. Accordingly, The question of what punishments are constitutionally permissible is no different from the question of what punishments the Legislative Branch intended to be imposed. While a question of multiple prosecutions, then, is a constitutional question that must be resolved according to the Blockburger test, the determination of whether the same criminal act can be punished under two separate statutes in one trial is a question of state law to be determined in state courts. Thus, the primary issue before this Court is whether the South Dakota Legislature intended first-degree arson and felony murder to be separately punishable offenses, not whether they constitute the same offense under the federal formulation of the Blockburger test. We have an established double jeopardy jurisprudence, which confirms that the Legislature may impose multiple punishments for the same conduct without violating the Double Jeopardy Clause if it clearly expresses its intent to do so.State v. Garza, 854 NW 2d 833 (S.D. 2014) (cleaned up) (citations omitted)